Comment

Criminal proceedings

I was one of the last western journalists to meet Slobodan Milosevic. Having been called to The Hague as a potential witness, I spent an hour in his cell in January last year. Like most who met him, I found him polite and intelligent. "We will win," he told me. "Freedom is a universal value. They have no evidence against me."

Such statements will shock those who have been assured that Milosevic was a nationalist dictator bent on establishing a racially pure Greater Serbia. But civilised societies ought to be reluctant to condone criminal convictions based on hate campaigns. The fact is that Milosevic's enemies have never been able to produce a single rabid nationalist, let alone racist, quotation from his mouth, while in the four years of his trial at The Hague not a single witness has testified that he ordered war crimes.

Instead, witnesses have been trooping into The Hague for nearly two years now, testifying that there was neither genocide in Kosovo nor any plan to drive out the civilian ethnic Albanian population, and that Milosevic could not be held responsible either for the break-up of Yugoslavia or the subsequent civil war in Bosnia-Herzegovina.

Establishing criminal responsibility is an exact science and the fact is that Milosevic was not in charge of Yugoslavia when it was breaking up. The 1991 order telling the (multi-ethnic) Yugoslavian army to fight the secessionist states, Croatia and Slovenia, was given by the then head of the federal government, Ante Markovic, a darling of the west - and western intervention made the situation much worse. Milosevic is often accused of upsetting the internal balance of the Yugoslavian federal constitution, but few seriously believe that a political system modelled on Switzerland's stood any chance of long surviving Tito.

The Hague prosecution issued the original indictment against Milosevic for Kosovo in May 1999, at the height of Nato's attack on Yugoslavia and in apparent justification of it. It was not until a year and a half later, and between seven and 10 years after the events, that the indictments for Bosnia and Croatia were added. This was presumably done because the prosecutors realised that Nato's allegations about genocide in Kosovo could not stand up in court. But the Bosnia and Croatia indictments were problematic too. Milosevic has always denied moral or legal responsibility for the atrocities committed by the Bosnian Serbs, for instance in 1995 at Srebrenica, because, as president of neighbouring Serbia, he was not in charge of Bosnia or the Bosnian Serbs. Even if he had influence over the Bosnian Serbs, that is a long way from criminal responsibility

If the international criminal tribunal for the former Yugoslavia were a proper court of law, the charges against him would have been dismissed long ago. Unfortunately, it is a highly politicised organ, created on the initiative of the very states which attacked Yugoslavia in 1999, and whose judges have disgraced themselves by bending the rules to facilitate the prosecution's task. In 2004, the judges imposed defence counsel on Milosevic, even though the ICTY's charter states that defendants have the right to defend themselves, and even though they knew he was too sick to stand trial. On February 24 2006, at the prosecution's insistence, they rejected Milosevic's request to be transferred to a heart clinic: he died a fortnight later.

It is corrosive of the core values of western civilisation for the chief Hague prosecutor, Carla del Ponte, now to say that Milosevic escaped justice by dying, for this assumes that "justice" means not due process but a guilty verdict. The day we start to believe that we will have abandoned the rule of law completely.

· John Laughland is the author of Le Tribunal Pénal International: Gardien du Nouvel Ordre Mondial (The International Criminal Tribunal: Guardian of the New World Order)